Risk of reoffending
95 The second way in which the applicant claimed that there had been a breach of procedural fairness related to the issue of the risk of the applicant reoffending. The applicant maintained that there was a breach of procedural fairness because the Minister did not invite the applicant to make submissions and provide evidence about his potential future substance abuse.
96 As will have been seen, the fact that the Minister could not "rule out" the possibility of further offending was a significant factor in his decision to cancel the applicant's visa. One reason the Minister could not rule this out was that he could not rule out the possibility that the applicant would engage in substance abuse in the future, such abuse being a factor in his offending. The reason the Minister concluded that even a low risk of reoffending was "an unacceptable risk of harm" was that any future offending would result in harm to Australian children. I would not, therefore, accept, as the applicant suggested, that the issue of potential future substance abuse was the sole significant factor that weighed against the applicant, because another significant factor as disclosed in the Minister's reasons was the nature of the applicant's offending.
97 The Minister's reasons discussed the material before him relating to the risk of reoffending in some detail, referring in turn to the sentencing judge's remarks, the references in these remarks to the report of Dr Thomson (a psychologist), the applicant's own representations and the letters of support: see [22]-[27] above. The Minister found that the applicant's "offending was the result of work pressure, financial stress and relationship difficulty and exacerbated by his ongoing drug and alcohol abuse" (emphasis added). Accepting that the applicant had made "some good progress in his rehabilitation" and that his remorse and insight, family and community support, stable accommodation and employment lessened the risk of further offending, nonetheless the Minister found that there was an "ongoing" "low" risk that the applicant would reoffend. The Minister was "concerned with [the applicant's] possible future substance abuse, particularly if he finds himself in stressful situations". He found that "there is a risk in [the applicant] engaging in substance abuse which increases the risk of his reoffending", noting that there was no "current information relating to the substances abuse which exacerbated [his] offending". For this reason, the Minister was unable to conclude that there was no risk of the applicant reoffending in the future.
98 For the following reasons, I would reject the applicant's submission that he was not afforded an opportunity to make submissions and provide evidence about his potential future substance abuse. The applicant was clearly informed at the outset of the adverse, credible and relevant material available to the Minister concerning this issue. He was put on notice of the potential relevance of this issue in the decision-making process. He was given an opportunity to provide information and evidence in response to it.
99 The June 2017 Notice informed the applicant that his opportunity to comment and provide information included "on whether the decision-maker should exercise his or her discretion to cancel your visa". The notice also outlined the relevance of the accompanying Direction 65: see [79] above. As already explained (at [79]), the applicant would have understood that Direction 65 set out the kinds of issues that the Minister could consider relevant to such a decision. Clause 9.1.2 of Direction 65 was in these terms:
9.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision- makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen re- offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
100 In reading this document, the applicant would have been made aware of the fact that the decision-maker was likely to consider and assess the risk that he might again commit a child pornography-related offence or offences and that, if so, the decision-maker would take into account the available information and evidence relevant to assessing this risk. Further, assuming as I do that the applicant would have read Direction 65 carefully, he would have been made aware that, in the case of serious offending, the decision-maker might find that any risk that he may reoffend was unacceptable. Bearing in mind that he had been convicted of what were undoubtedly serious offences, the applicant would therefore have been made aware that he should place all relevant information and evidence that he could before the decision-maker to satisfy the decision-maker that there was no risk of his reoffending.
101 The result was that the June 2017 Notice (accompanied as it was by Direction 65, the applicant's National Police Certificate and the sentencing judge's remarks) would have put the applicant on clear notice that the focus of the decision-maker's concern regarding his reoffending was the risk that the applicant would repeat the conduct that had resulted in convictions for child pornography-related offences. As indicated below, the sentencing remarks contained information adverse to the applicant that, on any view, was "credible, relevant and significant" to the issue of substance abuse. The very fact that these remarks were sent to the applicant with the June 2017 Notice should have indicated to the applicant that the remarks, including those with respect to substance abuse, could be used by the decision-maker in making a decision under s 501(2) of the Migration Act. If the applicant had any doubt about this, however, the June 2017 Notice expressly stated that Direction 65, the applicant's National Police Certificate and the sentencing remarks "consist of information … which the decision-maker may rely on to decide whether you pass the character test; and if not, whether your visa should be cancelled".
102 In his remarks, the sentencing judge emphasised that substance abuse was a factor in the applicant's offending. His Honour referred at the outset to the applicant's "acknowledged long term dependence on cannabis" and "acknowledged alcohol dependence". He accepted that the applicant's offending had "occurred in the setting of work pressure, financial stress, and relationship difficulty", at a time when his life "revolved around work, alcohol abuse and the internet". His Honour referenced Dr Thomson's professional opinion that the applicant had "poor coping skills resulting in problems avoidance and substance abuse [leading] to excessive internet use, including accessing child pornography for sexual gratification and mood enhancement". Significantly, the sentencing judge also found that, as at the date of sentencing (17 September 2012) the applicant still had "substance abuse problems, which, although moderated, still need to be addressed", adding that his "offending … occurred in the setting of cannabis and alcohol abuse". His Honour summed up the position with respect to the applicant's rehabilitation, saying "[i]n short, [the applicant had] made good progress" although more treatment was needed and, relevantly in the present context, "treatment concerning substance abuse is still in the early stages".
103 Procedural fairness required that the applicant be given the substance of the sentencing judge's remarks, being adverse information of a credible, relevant and significant kind available to the decision-maker. These remarks were given to the applicant. As I have said, the applicant was put on notice that the decision-maker could rely on these remarks when they were included with the June 2017 Notice. Given the nature of the decision that the Minister might make if the s 501(2) discretion were enlivened and the contents of the June 2017 Notice, with its enclosures (including Direction 65 and the applicant's National Police Certificate), the relevance of these remarks to a prospective decision would have been clear.
104 As observed above, the applicant would have been made aware by Direction 65 that the risk of his reoffending was a matter that would be considered if the decision-maker were a delegate and could be considered if the decision-maker were the Minister. In contrast to Stowers and Degning, in the circumstances of the present case, it does not seem to me that procedural fairness required the decision-maker to do more to bring the issue of the applicant's substance abuse to his attention. This was because the sentencing remarks made it tolerably clear that the sentencing judge considered that substance abuse had played a not insignificant part in the matrix of circumstances that led to the applicant's offending, and that his Honour had specifically found that as at 17 September 2012 the applicant's treatment for substance abuse was only in its "early stages". Given the serious consequences of a decision to cancel his visa, the applicant can be taken to have read these remarks and thus to have been made aware that the sentencing judge had found that substance abuse had contributed to his offending and had intimated that the applicant would require further treatment to address this particular issue. He would therefore have been on notice that his substance abuse could well be an issue for the decision-maker to consider in exercising the discretion in s 501(2) of the Migration Act. This was because, on any view, in assessing the risk of the applicant's reoffending, it was evidently open to the decision-maker to consider whether the factors that had led to his past offending might lead to his future reoffending. The June 2017 Notice contained a clear invitation to the applicant to supply responsive material. Direction 65 referred to an assessment of the risk of reoffending being made on information and evidence available to the decision-maker. It was clearly open to the applicant to make submissions and provide evidence concerning the substance abuse issue.
105 I am confirmed in my view that there was nothing more required to be done to put the applicant on notice of the substance abuse issue in order that he might address it through submissions and evidence by the fact that in completing his personal circumstances form the applicant himself recognised that the issue of substance abuse might impact on an assessment of the risk that he would reoffend.
106 Under the heading "CRIMINAL HISTORY AND RISK OF REOFFENDING" (emphasis in original), the applicant was asked "[d]o you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?" The applicant responded:
While there are no excuses, I went through a very low point in my life with the breakdown of my relationship. I turned to drugs and alcohol to suppress my anxiety and depression which dragged me to a further low point. I withdrew from friends + family and found myself addicted to internet pornography. This behaviour spiralled further out of control until I reached the lowest part which led to my arrest and consequent prison term.
(Emphasis added.)
107 He answered two further questions under this heading, including "[h]ave you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates". The applicant responded:
Soon after my arrest I sought professional help from a psychologist to help me to understand my behaviour. I continued this treatment every fortnight for 10 months until I was satisfied that I fully understood the consequences of my actions and behaviours.
108 In a further question, the applicant was asked "[w]hat do you think is the likelihood that you may reoffend now?" The applicant replied:
Unlikely as I have been released from prison for nearly five years. The original behaviour was not in my normal character. Prison is a very big deterrent and the thought of deportation is a very scary prospect as I have lived here all of my life.
109 It is clear from his answers that the applicant was aware that substance abuse had contributed to his offending and had necessitated treatment. Indeed, so was his sister. In her letter of support included in the material available to the Minister, his sister said that she recalled her brother was "not himself and had turned to heavy alcohol usage" and that this and other issues "most definitely contributed to my brother's behaviour and conduct leading up to his breaking the law". She added that he had been assisted by a psychologist "to work through his actions and to assist him in returning to positive lifestyle decisions". The applicant's mother also referred to the fact that he received counselling after he was released from prison, affirming that "[t]his was very beneficial in helping him to get his life back on track".
110 The applicant was on notice that the decision-maker could have regard to the risk of his reoffending in making a decision on his visa. The relevance of the applicant's substance abuse to the larger issue of the risk of his reoffending would have been apparent to him given his understanding of the circumstances that led to his offending and his need for treatment. That he understood the connection is indicated by the fact that, in his completed personal circumstances form, he related his substance abuse at the time of his offending under the heading "Criminal history and risk of reoffending" and referred to his treatment by a psychologist. Reference to the sentencing judge's remarks would have confirmed the relevance of future substance abuse to the risk of future reoffending. The fact that the sentencing judge had found that his treatment for substance abuse was only in its "early stages" at the time he was sentenced would have drawn his attention to the fact that a decision-maker could treat it as an ongoing concern if there was nothing to show that it had been fully addressed by the applicant.
111 The applicant had an opportunity in completing his personal circumstances form to address the possibility that he might engage in future substance abuse. He also had an opportunity to detail any treatment he had since received for substance abuse and the effect of treatment on him. It would also have been open to him to have supplied independent evidence of this treatment (for example, by providing a report from his treating psychologist), a possibility indicated by the June 2017 Notice, the personal circumstances form, and Direction 65.
112 In his reasons for the decision (see [22]-[27] above), the Minister specifically referred to the applicant's statements in his completed personal circumstances form that deterring factors against his reoffending included prison and the thought of his removal from Australia. He referred to the applicant's statement about seeing a psychologist and to the letters of support referring to the applicant's engagement with that psychologist. As the Minister observed, however, the fact was that the applicant did not provide "any evidence in regards to his rehabilitation from substance abuse". In the absence of "any current information relating to the substances abuse", it was open to the Minister in the circumstances of the applicant's offending to conclude that there remained a low risk that the applicant might reoffend, bearing in mind the possibility that the applicant might engage in substance abuse again. Such a conclusion was "obviously open on the material", having regard to the sentencing judge's remarks in September 2012 and the other material available to the Minister.
113 For these reasons, I reject the applicant's submission that there was a breach of procedural fairness because the Minister did not invite the applicant to make submissions and provide evidence about his potential future substance abuse. The applicant was given the credible, relevant and significant information available to the Minister on this issue, in the form of the remarks of the sentencing judge. The applicant was put on notice of this issue by these remarks and other documents supplied to him. His response in his completed personal circumstances form indicated that he was aware of this issue.
114 In substance the applicant's complaint is that the Minister did not accept the applicant's representations that there was no risk that he would reoffend. This is not, however, a legitimate basis on which to set aside the Minister's decision. The applicant's complaint does not disclose a lack of procedural fairness.